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897 results in Contract Law

Page 14 of 45

  • 1 - The Development of the Party Autonomy Principle in China

  • Jieying Liang, The University of Hong Kong
  • Book:
    Party Autonomy in Contractual Choice of Law in China
    Published online:
    09 March 2018
    Print publication:
    22 March 2018, pp 1-25

  • Summary

    Chapter 1 provides a brief overview of the history of China's legislation and judicial practice on the party autonomy principle in contractual choice of law. It examines how the relevant legal rules have evolved and how they have been applied in people's courts in China. It demonstrates that, although the private international law legislation and judicial practice in China has progressed greatly since 1978, most of the legal rules are abstract. They create ambiguities in several respects concerning the practical operation of the party autonomy principle.

Party Autonomy in Contractual Choice of Law in China
  • Jieying Liang
  • Published online:
    09 March 2018
    Print publication:
    22 March 2018
  • The principle of party autonomy in contractual choice of law is widely recognised in the law of most jurisdictions. It has been more than thirty years since party autonomy was first accepted in Chinese private international law. However, the legal rules provided in legislation and judicial interpretations concerning the application of the party autonomy principle are abstract and open-ended. Without a critical understanding of the party autonomy principle and appropriate interpretations of the relevant legal rules, judges have not exercised their discretionary power appropriately. The party autonomy principle has been applied in a way that undermines its very purpose, that is, to protect the legitimate expectations of the parties and promote the predictability of outcomes in transnational commercial litigation. Jieying Liang addresses the question of how, when, and with what limitations, parties' choice of law clauses in an international commercial contract should be enforced by Chinese courts.

  • The Digital Dimension as a Challenge to European Contract Law – The Architecture

  • from PART I - The Overall Architecture
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 3-46

  • Summary

    ABSTRACT

    In this introductory chapter, we offer an overview of the interactions between digital technologies and contract law. We identify three pillars in this architecture: the regulatory framework; digital interventions over the life-cycle of the contract; and digital objects of contracting. The regulatory framework, which itself may draw on digital technology to effectively pursue its ends, shapes, and is shaped by, the other two pillars. More specifically, on the one hand, we show how four key technologies – digital platforms, Big Data analytics, artificial intelligence, and blockchain – are being used at different stages of the contractual process (from the screening for contractual partners to formation, enforcement and interpretation) and engender novel market dynamics that, in many instances, necessitate regulatory responses. On the other hand, digitally facilitated contracting increasingly relates to digital content as the object of the contract. However, while this area has notably been shaped by the proposed Directive on Contracts for the Supply of Digital Content, we argue that a number of important blind spots remain that fail to be addressed by the directive. All in all, the digital dimension of contracting will likely reinforce an adaptive, relational view and practice of contracting. This increased fluidity engenders a vast potential for preference-conforming, time-sensitive contracts; however, to the extent that it also mirrors novel asymmetries of information and power, the ordering mechanisms of the law may simultaneously be more needed than ever.

    CHALLENGES AND CORE FEATURES OF AN ‘ARCHITECTURE’

    The digital dimension and its challenges and repercussions for contract law in Europe – or ‘European Contract Law’ – are not a narrow issue.

    It may therefore be wise to specify three things in a bird’ s-eye view first: (i) what kind of contract law and contract law perspective we are mainly interested in; (ii) what vision of ‘European Contract Law ’ we base our discussion on; and finally (iii) what the main thrust of the chapter (and book) is and, linked to this question, which ingredients are included as being important for this purpose.

    WHAT PLACE FOR CONTRACT LAW IN THE DIGITAL ARENA?

    The broader the issue, the more a certain understanding of law and contract law may have a bearing on how to treat the issue (one could also say a certain ‘preconception’ of how to so).

  • Connected Contracts Reloaded – Smart Contracts as Contractual Networks

  • from Part III - Digital Formation of Contract – More Virtual and More Formalised
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 205-236

  • Summary

    ABSTRACT

    Blockchain technology and ‘smart contracts’ are widely debated in many industries, but especially among legal professionals and academics. Some practical legal questions can be answered relatively quickly or have to be postponed by ‘we do not know’ or ‘it depends’.

    More interesting than those considerations, however, is whether the emergence of smart contracts based on blockchain technology as a technological materialisation of connected contracts raises issues for the conceptualisation of transnational contract law and what a new conceptualisation, taking into account these issues, could look like.

    To this end, this contribution tries to acknowledge or incorporate existing work in the area of technology and law such as ontologies, legal reasoning and simple markup languages, but then goes beyond that and tries to explore a sociolegal concept of smart contracts that incorporates the sociological concept of networks by Latour and the system-theoretical approaches of Luhmann with the descriptions of ‘connected contracts’ by Teubner, ultimately incorporating them into the aforementioned ‘ technological materialisation’ of the network structure of law generally and connected contracts specifically.

    This then can serve as an important methodological tool for the future, to research and describe ‘smart contracts’ at a higher level of abstraction.

    INTRODUCTION

    Certain contractual agents, also called ‘smart contracts’, running on blockchain technology have gained increasing importance due to promising increased automation and assurance for digital contracting, aiming to bridge law and soft ware code. Thus, this contribution investigates these phenomena, recognising that these developments are potentially game-changing for commerce and further digitalisation of contract law.

    To this end, ‘smart contracts’ and the systems they are running on are analysed with regard to developments of ‘connected contracts’ and a network(ed) understanding of contract law already developed for newer contractual and company law constructs such as just-in-time production. In order not to limit the examination to ‘traditional’ manufacturing networks but to re-investigate the phenomenon of networks in law more generally, this is complemented by taking account of socio-legal descriptions of networks and law, as well as providing a brief account of current or past alternative approaches to bridge law and technology that are relevant for context and understanding.

  • The Silk Road Revisited – Money Transactions Inside the Bitcoin System

  • from Part III - Digital Formation of Contract – More Virtual and More Formalised
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 237-260

  • Summary

    ABSTRACT

    The chapter sets out to show a chain between the many aspects of Bitcoin as a regime of exchange and contract-based transactions, and to lay a basic groundwork of understanding for Bitcoin as a framework for transactions. Relevant aspects are Bitcoin’ s status as money, the different and functional qualities that it shares with other types of money, its distributed technical nature and structural integrity, as well as its ideological roots incorporated in technology. An exciting addition onto the open final link of this chain is the advent of new decentralised Bitcoinbased marketplaces where the goal is to include the transactions themselves inside Bitcoin's ‘blockchain’ – the foundation of this digital regime of exchange. Historical lines are drawn between Bitcoin and the ancient cultures of Mesopotamia in 3000 BC. While the attributes of the monetary system used in the Cradle of Civilisation are the antithesis of Bitcoin when it comes to the dichotomy of geographical centralisation/decentralisation, it evinces strong similarities concerning the relative unimportance of material tokens. A further shared trait is traced, one that is likely to prove revolutionary in the future: the intimate connection between the monetary system itself and the transactions performed using it.

    The Silk Road was launched in 2011. That is to say, this was when an online marketplace that called itself the ‘Silk Road’ was launched. The principal items on sale at this digital market were, unsurprisingly, various illicit substances, and the parties frequenting this marketplace settled their transactions by a direct transfer of something called ‘Bitcoin’. In this online version of buying drugs for cash in dark back-alleys, there were no banks or bank-backed payment systems involved, only this money-like thing called ‘Bitcoin’, which purported to sustain its integrity upon a technology without a central point of control. Now, years after the new Silk Road was shut down, Bitcoin is being used by wholly legal online stores as well as some banks and even state authorities.

    HIGH PRIEST NAKAMOTO

    The key realization was that there’ s no difference between modern culture and Sumerian. We have a huge workforce that is illiterate or alliterate and relies on TV – which is a form of oral tradition. And we have a small, extremely literate power elite … who control society because they have this semimystical ability to speak magic computer languages.

  • Digital Contracts in Global Surroundings

  • from Part II - Institutional Framework – Platforms, Regulation Issues, Global Surroundings
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 49-86

  • Summary

    ABSTRACT

    Currently, questions around Internet jurisdiction – in a general sense – are gaining an unprecedented level of attention. Yet, progress is both slow and limited. This chapter argues that the most significant obstacle for progress is found in the fact that our current thinking on jurisdiction is largely dominated by, and rooted in, notions of territoriality. The problem is that it is not always easy – or indeed possible – to determine where (in real-space geographical terms) events take place online. Thus, this chapter advances an alternative. More broadly, this chapter aims to bring attention to several themes of central importance for digital contracts in global surroundings. Apart from the already mentioned reliance on territoriality, those themes are: (i) that the Internet cannot be allowed to be a lawless space; (ii) that cross-border online interaction fulfils a valuable function; (iii) that we presently are experiencing a state of ‘hyper-regulation’ and (iv) that the role of contracts has increased with our use of the Internet. This chapter is also aimed at bringing attention to important considerations of the extent to which we uphold party autonomy in the context of choice of forum and choice of law clauses online. In addition, the prevalent ‘targeting’ focus is discussed and analysed in detail.

    INTRODUCTION

    The world is changing dramatically and rapidly due to advances in information technology, in particular the Internet. But despite these changes, the central role of contracts remains. In fact, it seems the role contracts play in our lives is increasing. And arguably, this trend is particularly clear in the context of crossborder interactions raising questions of which court(s) may claim jurisdiction, and which (country's) substantive law will govern the interaction.

    This chapter commences by examining this theme and four other clear themes discernible in digital contracts in global surroundings, namely:

  • – that the Internet cannot be allowed to be a lawless space;

  • – that cross-border online interaction fills a valuable function;

  • – that we presently are experiencing a state of ‘hyper-regulation’; and

  • – that there is a strong focus on territoriality.

  • Contracts in the Infosphere

  • from Part IV - Development and Implementation of Contract – More Digital, More Liquid
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 263-278

  • Summary

    ABSTRACT

    As information machines become increasingly autonomous, not only partial and predetermined aspects of contracting are delegated to them, but also the very deliberations pertaining to whether to enter a contract, with whom, and with what content. After considering the different aspects of autonomy, I argue that the use of autonomous contracting agents involves the delegation of cognitive tasks. Consequently, such agents should be considered the real authors of the contracts they conclude. Not only do they exercise discretion in contracting, but they also have those cognitive states that are relevant to the contracts they form (beliefs, goals and intentions). Consequently, the rules that apply to human agents should in principle also apply to autonomous digital agents. This does not presuppose that digital agents should be granted legal personality, understood as the ability to bear rights and duties, since the normative effects of their activity will fall upon their users. Finally, I consider some of the legal and social issues that may result from the widespread delegation of contracting to digital agents.

    INTRODUCTION

    Contracting takes place today in a new socio-technological space, the so-called infosphere, based on digital information and information machines. In such a context, several contract-related tasks are either accomplished with the support of machines, or are completely delegated to them. As information machines become increasingly autonomous, not only are partial and predetermined aspects of contracting delegated to them, but also the very deliberations pertaining to whether to enter a contract, with whom, and with what content.

    I shall address some emerging dimensions of contracting in the ICT-based infosphere, focusing on artificially intelligent contracting parties.

    First, I shall address the embeddedness of contractual activities in active, responsive, and connected informational environments. I will argue that in such environments a vast expansion of contractual interactions is likely to happen, since contracting enables distributed autonomous collaboration between humans and artificial entities, and between such entities themselves. Contractual relations will be entered into by both virtual artefacts (e.g., online bots) and physical artefacts (e.g., autonomous cars), as interactions with physical artefacts take place through their interconnected digital interfaces.

    I will then focus on how contracting may take place with and between Autonomous Contracting Agents – ‘ACA’ s. I will characterise the idea of autonomy as including three aspects: independence of action, high-level cognitive skills, and adaptive/teleologic architecture.

Page 14 of 45